When will the prosecution be allowed to rely on the former testimony of an elderly witness for confrontation clause purposes?

To support his claim of functional unavailability, appellant cites Evidence Code section 240, ⁷ and cases such as People v. Alcala (1992) 4 Cal.4th 742 (Alcala), in which the prosecution was allowed to use the former testimony of witnesses under Evidence Code section 1290 et seq. when it established that, due to mental infirmity, the witness no longer possessed any recollections relevant to the case. (Alcala, at pp. 778-779.) Appellant merely assumes, without citation of authority, that the standard for admitting the former testimony of a reluctant or forgetful witness in lieu of the witness's live testimony is the same as that for determining when a witness is unavailable for confrontation clause purposes. Case law in fact suggests the two standards are not to be equated.

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